AbstractThis essay explores whether the presumption of innocence (P.o.I) should be applied to the defendants at all times, discussing the strengths and weaknesses of the P.o.
I in an actual trial of the modern day, whilst considering the practical effect of such legal right in reality. Moreover, this essay explores the real-life influence of the P.o.I in the UK libel and criminal law, ultimately proposing for the reformation of this principle, so that this legal right cannot be utilised in the favour of the prosecutor and/or the defendant to result in a wrongful verdict. IntroductionThe P.o.
I is “a fundamental protection for a person accused of a crime, which requires the prosecution to prove its case against the defendant beyond a reasonable doubt.” (Gerald N. Hill and Kathleen T.
Hill/1981-2005) In this case, the burden of proof (B.o.P) rests on the prosecutor, and the guilt of the accused must be proven beyond reasonable doubt. This essay has initially been motivated by the movie “Denial”, whereby the protagonist accused of defamation makes a rather astonishing discovery that libel cases in Britain presume the accused as guilty unless proven otherwise; a stark contrast to the P.o.I in American libel suits.Sir William Blackstone once famously said: “it is better than ten guilty persons escape than that one innocent suffer”. (Sir William Blackstone/1766) Indeed, it is undoubtedly crucial that all defendants receive an impartial verdict upon a trial.
Hence, under the UN’s Universal Declaration of Human Rights, Article 11, “everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to the law in a public trial” (United Nations/1948). However, the true, practical significance of such principle – in reality – is debatable up to this date, with the presence of a significant number of cases with wrongful convictions. Moreover, although this essay acknowledges the importance of a fair trial for the falsely accused, it is also concerned of the devastating effect a wrongful verdict in favour of the accused – whether it is due to the lack of evidence or reasonable doubts – may have on the lives of victims. Libel Law: freedom of expression VS protecting one’s reputationUp to this date, there is an unending discussion as to whether the defendant in a libel case should initially be presumed innocent, or otherwise – some may argue that the P.o.I doesn’t have any significant impact on the overall trials of libel cases, whilst the other may reinforce the impact which P.
o.I has on the final verdict of their libel cases. There is a noteworthy scene in the movie “Denial”, whereby the lawyer of the protagonist (accused of defamation) explains why “the accuser he’s bringing the case in London”. He states: “In America if you’re accused of defaming someone, then it is up to them to prove that what you said is untrue… In the UK the reverse is true”. The protagonist – sounding rather confused (being an American citizen) – responds: “It’s against natural justice. In the US there’s a presumption of innocence”. (David Hare/2016) Indeed, it is the absence of the P.o.
I in the British libel law – “an anomaly in the English law, where defendants are usually presumed innocent until proven guilty” (United Nations/1948) – that makes Britain so favourable to those seeking for protection in their reputation, as the B.o.P lies on the defendant. “The English approach to libel, therefore, suggests that the reputation of the claimant is more important than the free speech of the defendant”, claims the Libel Reform campaign report “Free Speech is not for Sale” (Inform’s Blog/2010). Nonetheless, a reputation of a person is undeniably significant; it is an important part of one’s dignity as a member of a society.
Thus, a false statement (i.e. through irresponsible journalism) has the potential strengths to ruin the lives of the victims of defamation – completely and forever. It is critical that libel law consists of a balance between the right of the claimant to vindicate a defamatory claim and the defendant’s freedom of expression.In Britain, the P.o.I is not applied to the context of libel law, as defamation is seen as a civil action.
As a result, the defendant bears the B.o.P, and the defendant has to prove the truth of their statement, pleading for justification. Thus, in the English libel law, the defendant is in fact viewed as the reversal of the P.o.
I. “Since newspapers and other publishers are often unable to clearly prove the truth of all the information they receive, or unwilling to reveal all source or informants, it’s very difficult for defendants to overcome this presumption”, states Saperlaw. (Saper Law, 2010) Indeed, the requirement for the accuser to prove one’s guilt seems more reasonable and just, as it is often harder for the defendant to prove their own innocence. The fundamental purpose of the P.o.
I is to protect the defendant from a wrongful conviction, especially when the guilt of the accused is in doubt for whatever reason (lack of resources/evidence, etc.) Thus, the conviction of the defendant upon lack of evidence to prove their own innocence – to a certain extent – seems rather unjust, especially when the financial burden which the defendant would have to bear upon being found guilty were to be taken into consideration.This was where the major problem lied with the previous Defamation Act of the UK – sometimes known as the archetypal ‘rich man’s law’; the UK faced “libel tourism”, “where foreign businessmen and millionaires use the High Court in London to sue foreign publishers under claimant-friendly defamation laws.” (Robert Verkaik/2008) Indeed, the “claimant-friendly” defamation law was seen as attractive by wealthy celebrities and politicians around the world, arguably inhibiting the free speech of their critics.
However, the recent changes in the UK Defamation Act (Defamation Act 2013, Chapter 26) (Parliament of the United Kingdom/2013) has reportedly resulted in a decreased number of defamation cases in the UK “from 86 to 63, the lowest level for six years”. One of the major reasons behind this drop is perhaps due to the change in the claimant’s requirements who – previously only having to show that the “statement complained of… was both false and defamatory of that party” (Parliament of the United Kingdom/1966) (Defamation Act 1996, Section 4(3)(b)) – now had to exhibit the “serious harm” which has/is likely to cause (Defamation Act 2013, Section 1). Through this change in what previously seemed to be a plaintiff-favoured law, the rights of both the plaintiff and the defendant seemed to remain with more balance. This change may be viewed as a subtle method of releasing some B.o.
P from the shoulders of the defendant, as the claimant is now required provide a more concrete, ‘ocular’ proof that the defendant has made a significant damage to their reputation and finance. This change perhaps also adds some elements of the P.o.I, as the court now – in theory – requires a reasonably undoubtful proof that the defendant has truly made a defamatory remark towards the claimant.Yet, “libel tourism… was supposed to have been stopped by the UK Defamation Act 2013.
But… English libel courts remain attractive to the world’s rich and powerful” (HENRY WILLIAMS/2015), states Spike-online. Certainly, the case of Sloutsker v Romanova mentioned in the article was an example of a successful libel tourism, whereby the claimant won his case in the UK after having his case “rejected by the prosecutor-general of Russia” (Columbia University/2015). In section “C. Adjourn or Proceed in the Defendant’s Absence?” of the final judgement states that the defendant had “(i) language difficulties, given that she is Russian, (ii) financial problems precluding her from paying for translation and representation…” (MR JUSTICE WARBY/2015) Despite such language and financial difficulties, the defendant had the B.o.P on herself in the British court. Thus, perhaps the defendant was incapable of providing the veracity of her so-claimed-defamatory words, and therefore unable to reverse her presumption of guilt – which may have concluded otherwise in her native country.
In this libel case, regardless of the actual guilt of the defendant, some may critique the lack of power the defendant had in a foreign land for the B.o.P to rest on her. Hence, here lies the question: should the presumption of innocence rest on the defendants at all times? Had Romanova (defendant) been presumed innocent until proven guilty, would the final judgement have indeed concluded otherwise? Criminal Law: the strengths and weaknesses in the presumption of innocence (Note: this section needs more edit; not much evaluation has been done yet)The common understanding of the P.o.
I as a principle of criminal law is that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”(Parliament of the United Kingdom/1988), and that the B.o.P rests on the prosecutor – ultimately, the P.
o.I is (or at the very least, should be) a fundamental element to a fair trial. Thus, the enforcement of this legal right is crucial, to ensure that not a single ‘one innocent suffer’. On the surface, the P.o.I appears to stand on the defendant’s favour at all times.
In theory, “the state must prove guilt to a high standard. If doubt remains, the defendant must be given the benefit of the doubt”. (Fair Trials/-)Yet, “presumption of innocence and the burden of proof on the prosecution to prove its case beyond a reasonable doubt act in reality against the interests of those who might be innocent at every stage of the criminal justice process” (Dr. Michael Naughton/2011), argues Dr. Michael Naughton. In the “police investigation stage”, the information “being gathered… can lead to wrongful convictions” (Dr.
Michael Naughton/2011). The wrongful conviction of the Guildford Four was an example of the violation of such principle, as they were “documented that… were tortured into making false confessions for (I.R.A) bombings in England” (Dr. Michael Naughton/2011). The police investigations often seems to focus on the evidence that suggests the guilt of the accused, rather than the possibility of the defendant’s innocence. In the “trial stage”, there has been multiple past cases of miscarriages in justice through the prosecutor’s power of B.o.
P through the P.o.I. For instance, in M25 Three, the “evidence favorable to the defence case was not disclosed in the interests of circumventing the burden of proof place on them by the P.o.I”. (Dr.
Michael Naughton/2011)Dr. Michael Naughton continues to state that “the Criminal Justice and Public Order Act 1944” (Parliament of the United Kingdom/1944) “eroded the historical safeguard of ‘the right to silence’ by providing statutory rules under which adverse inferences of guilt may be drawn from a suspect or defendant’s silence to police or prosecution questioning.” (Dr. Michael Naughton/2011)